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Pennsylvania Act 12 (amended in 2020) does not authorize curing by providing provisional ballots for mail-in voters whose ballots were rejected. Act 12 requires, as part of the mail-in application process, an affidavit that:

[The elector] shall not be eligible to vote at a polling place on election day unless the elector brings the elector’s mail-in ballot to the elector’s polling place, remits the ballot and the envelope containing the declaration of the elector to the judge of elections to be spoiled and signs a statement subject to the penalties under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) to the same effect.**

The law in Pennsylvania clearly states that no county may affirmatively provide provisional ballots: The mail-in voter must vote in person and sign a new affidavit. In the 2020 election, the Pennsylvania Supreme Court recognized that “the Election Code contains no requirement that voters whose ballots are deemed inadequately verified be apprised of this fact. Thus, unlike in-person voters, mail-in or absentee voters are not provided any opportunity to cure perceived defects in a timely manner.”*° Given the Pennsylvania Secretary of State’s use of guidance to circumvent state law, the Pennsylvania Secretary of State should have been (and still should be) investigated and prosecuted for potential violations of 18 U.S. Code § 241.

Investigations and prosecutions under 18 U.S. Code § 241 are currently within the jurisdictional oversight of the Civil Rights Division, not the Criminal Division. Only by moving authority for 18 U.S. Code § 241 investigations and prosecutions back to the Criminal Division will the rule of law be appropriately enforced.

Rejecting Third-Party Requests for Politically Motivated Investigations or Prosecutions. The DOJ should reject demands from third-party groups that ask it to threaten politically motivated investigation or prosecution of those engaging in lawful and, in many cases, constitutionally protected activity. By acceding to such demands, the department risks diminishing its credibility with the American public. This risk is exacerbated by the fact that communications between government officials and third-party groups are generally unprotected by privilege and subject to disclosure, whether via subpoena to the third-party group or via request made pursuant to the Freedom of Information Act. These communications can even be made public voluntarily by the third-party group.

Arecent example illustrates the risks posed by such activity. On October 4, 2021, Attorney General Merrick Garland issued a memorandum to the Director of the FBI, the Executive Office for U.S. Attorneys, and the Assistant Attorney General, Criminal Division, calling on the FBI to work with each U.S. Attorney to “convene meetings with federal, state, local, Tribal, and territorial leaders” to discuss strategies for addressing “threats against school administrators, board members, teachers, and staff.”®” Subsequent reporting and investigation revealed that the